Uttarakhand High Court
Hon'Ble Sharad Kumar Sharma vs State Of Bihar And on 1 March, 2023
Office Notes,
reports, orders or
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Date COURT'S OR JUDGES'S ORDERS
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Registrar's order
with Signatures
C482 No.376 of 2023
With
IA No. 1 of 2023
Hon'ble Sharad Kumar Sharma, J.
Mr. Karan Singh Dugtal, Advocate, on behalf
of Mr. M.K. Ray, Advocate, for the applicants.
Mr. Sachin Panwar and Mrs. Lata Negi, Brief
Holders, for the State of Uttarakhand.
Mr. Vinay Kumar Chauhan, Advocate, for
respondent No.2.
The applicant No.2, who happens to be the
brother-in-law of respondent No.2, is said to have
physically assaulted the daughter of respondent
No.2, who was born out of the wedlock of her with
her first husband. The sexual assault was made by
him upon the minor when she was about nine years
of age. But, somehow, the applicant No.2, had
been able to procure the shelter of the judgment of
the Hon'ble Apex Court as rendered in (2014) 8
SCC 273, Arnesh Kumar Vs. State of Bihar and
another, and he is out of custody.
Jeeshan Salmani, the second husband of the
respondent No.2 and the step father of the victim
Simran Salmani. The victim Simran Salmani has
too appeared before the Court in person and has
made a statement before this Court, that there is an
imminent threat for her from her step father and the
applicant No.2, her step uncle. She submits that
the physical atrocities, which had been exercised by
her step father and step uncle, applicant No.2, is too
atrocious and even this Court being conscious of
the fact, that socially the victim cannot left at the
mercy of the step father or step uncle, who have
sexually assaulted her.
This Court is of the view, that this would be
the fittest case, where this Court should exercise its
inherent powers. Taking the benefit of Arnesh
Kumar (Supra) by the applicant No.2, will not
create any impediment for his Court for exercising
its inherent powers under Section 482 of the Cr.P.C.
in order to curb the social menace, which has been
conducted by the applicant Nos. 1 and 2 against the
daughter of respondent No.2.
This Court had prolonged interaction with the
daughter of respondent No.2, who is present in
person. She admits the fact, that the applicant Nos.
1 and 2, have sexually exploited her, which is a
fact, not denied by the applicant No.2, even before
this Court, who is present in person.
This Court is of the view, that the
compounding of offences as sought for by the
present applicants does not deserve to be
compounded, looking to the nature of offence,
which is too serious enough, for which, the
cognizance has been rightly taken by the Court of
Addl. Sessions Judge, Udham Singh Nagar.
The respondent No.2, the mother of the
victim, who is present in person, has stated, that she
still has an apprehension, that on the release of
applicant No.1 and even applicant No.2, who is not
in custody at present, she may be further exploited
by them by exerting pressure or by threatening her
to accede to their ulterior motive, in order to
procure their acquittal from the involvement of the
commission of the offences, for which, the
cognizance has been taken by the Court of learned
Trial Court, i.e. for the offences under Section 323,
504, 506 and 376 of the IPC to be read with
Section 5/6 of the POCSO Act.
The judgment of Arnesh Kumar (Supra)
cannot be permitted to be mis-utilized by the
persons of the temperament of applicant No.2 and,
there is no reason to disbelieve the statement of the
minor victim, who was at the relevant time minor of
nine years of age.
The respondent No.2 has expressed
apprehension, that in an event of release of
applicant No.1 and even by applicant No.2, she
apprehends, that she would not be safe.
As such, in that eventuality, in order to
ensure her safe living of respondent No.2 and her
daughter, this Court directs the Station House
Officer of the concerned area to ensure and provide
protection to respondent No.2 against any atrocious
act of applicant Nos. 1 and 2 in future.
So far as Simran Salmani is concerned, since
she is presently undertaking her education in Jaipur,
the Court of Additional Sessions Judge, Udham
Singh Nagar, while trying the offence in Special
Sessions Trial No. 800 of 2022, State of
Uttarakhand Vs. Jeeshan Salmani and another, they
would permit the daughter of respondent No.2 to
participate in the proceedings to record her
evidence through video conferencing. Her personal
presence may not be required by the Court while
conducting the trial against the applicant Nos.1 and
2.
Looking to the basic fabric of the entire
controversy and sensitivity of the issue, where the
act conducted by the applicant Nos. 1 and 2, is
absolutely dehors to the very consciousness of the
Court, this Court exercises its inherent powers
under Section 482 of the Cr.P.C. and directs the
CO, High Court to forthwith take custody of
applicant No.2. Since the matter pertains to Police
Station Mallital, the CO, High Court is directed to
hand over the custody of applicant No.2 to the
S.H.O., Mallital, Nainital, for necessary compliance
in accordance with today's order and send him to
jail for serving his sentence during the course of
trial for the alleged offence, which he has not
denied and as stated by the daughter of respondent
No.2, and particularly when there is no reason to
disbelieve her statement.
Subject to the aforesaid, the Compounding
Application would stand rejected.
It is further made clear, that in case, if there
is any chance of exercising of atrocities by
applicant Nos. 2 or by applicant No.1, by any
means whatsoever, it will be open for the
respondent No.2 or her daughter to approach this
Court by filing an appropriate application in this
C482 Application itself before me for taking an
action against the applicant Nos. 1 and 2.
Subject to the aforesaid, the C482
Application stands rejected.
(Sharad Kumar Sharma, J.)
Dated 01.03.2023
Shiv
